Employee Who Pushed Chair Aside and Hurled Obscenities at Manager Punctuated by Threat Did Not Lose NLRA Protections: NLRB | Practical Law
In Plaza Auto Center, the US Court of Appeals for the Ninth Circuit remanded the case to the National Labor Relations Board (NLRB), requesting that the NLRB give full effect to the factual and credibility findings of an NLRB administrative law judge (ALJ), who determined that an employee's obscenity-laced outburst was menacing, physically aggressive or belligerent. The court also asked the NLRB to reapply its Atlantic Steel test in light of these credibility and factual findings to determine whether an employer's termination of the employee violated the National Labor Relations Act (NLRA). On remand, the NLRB overruled the ALJ's factual conclusions and, reapplying Atlantic Steel, again held that the employee's outburst did not cause him to lose the protections of the NLRA because he was engaged in protected Section 7 activity, did not expressly threaten physical harm and was in front of a small audience away from the rest of the employees.